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Case Name
W v. S (Hague Convention) [2011] NZFLR 49
INCADAT reference
HC/E/NZ 1225
Court
NEW ZEALAND
Family Court, Plymouth
First Instance
Judge RJ Murfitt
States involved
AUSTRALIA
NEW ZEALAND
Decision
17 June 2010
Upheld on appeal
Consent - Art. 13(1)(a) | Acquiescence - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Issues Relating to Return
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Re H and Re S (abduction: custody rights) [1992] NZFLR 84 (HL); Secretary for Justice v SB (Retention: Habitual Residence) [2006] NZFLR 1027; AHC v CAC FC Auckland FAM-2010-004-002326, 7 January 2011; AHC v CAC [2011] 2 NZLR 694, [2011] NZFLR 677; Punter v Secretary for Justice [2004] 2 NZLR 28 (CA); Re S [1998] 1 FLR 651; AL v RCL [2012] NZFC 1549 at [16]; SK v KP [Habitual Residence] [2005] NZFLR 1064; Re F (a minor) (abduction: custody rights abroad) [1995] 1 Fam 224; Re S (child abduction: delay) [1998] 1 FLR 651.
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INCADAT comment
Exceptions to Return
Establishing Consent
Acquiescence
Australian and New Zealand Case Law
SUMMARY
Summary available in
EN
Facts
In June 2009 the mother obtained a protection order against the father. The former family home was sold in August 2009. On 14 October 2009, after several weekends of contact occurring as per the parenting agreement, the mother took the child to New Zealand. The father petitioned for the return of the child.
Ruling
Grounds
Consent - Art. 13(1)(a)
The Court held that even if the father had forcefully told the mother to go away on several occasions, this could not amount to consent to the removal of the child. In this, regard had to be paid to the nature of the mother's removal of the child which was carried out covertly and without notice to the father. The Court also considered a text exchange between the parents in the aftermath of the removal.
Acquiescence - Art. 13(1)(a)
It was argued for the mother that the delay of five months before court proceedings were initiated should lead to the conclusion that the father had acquiesced in the removal. The Court accepted that acquiescence could be inferred from conduct, where there was no positive action of acquiescence, but held that in such circumstances the inference must be clear and unequivocal and based on proved facts.
Whilst the Court accepted that a delay in bringing proceedings could give rise to a finding of acquiescence, it would need to be coupled with other evidence indicating the delay was indicative of the applicant's acceptance with the respondent's removal of the child. On the facts there was no such evidence there being a variety of possible explanations for the delay.
Grave Risk - Art. 13(1)(b)
It was argued that the return of the child would place him at a grave risk of exposure to psychological harm or of being placed in an intolerable situation. In this reference was made to the conflicted relationship between the parents, the father's (acknowledged) alcohol abuse, and the child's medical situation (he possibly had Asperger's Syndrome, displaying behaviour indicative of the lower end of the Autistic Spectrum Disorder).
The Court rejected case law which suggested that not only must the Article 13(1)(b) risk be grave but so also the psychological harm must be severe, stating "[i]t would be hard to envisage a situation where the courts would sanction a return where it was very likely a child would be psychologically or physically harmed, even if that harm was not at the most severe end of the scale."
The Court noted that the father had not defended the mother's Australian application for a Protection Order in which she had alleged "gross verbal abuse and some physical manhandling". But held that if the mother were to return she could enforce the Australian order to protect herself.
Turning to the child's condition, the Court accepted the widely held view that such childhood disorders were better managed by a primary caregiver who was herself/himself in a secure and emotionally stable situation. But held that this, and other considerations affecting the child's overall welfare, would be relevant for a judge determining the child's placement in the long term.
The Court noted that the child would face some form of emotional dislocation if required to move back to Australia, but acknowledged that he had already adjusted to a new environment in New Zealand. The Court held that the mother's claims were relevant to an eventual decision as to where the child should live. The Court found that the exception had not been made out.
Issues Relating to Return
Notwithstanding the Court's finding on Article 13(1)(b), it held that in the light of the child's personal characteristics which made him vulnerable to emotional distress, the Court was compelled to take steps to ensure that risks associated with return were mitigated. The Court considered New Zealand case law on deferred return, so as to ensure proper protective arrangements could be put in place for the child in question.
It noted that different views had been expressed as to whether welfare considerations could be taken into account in determining the timing of a child's return. The Court adjourned the proceedings so that arrangements could be made to facilitate the voluntary return of mother and child. It was anticipated that the latter arrangements would cover both accommodation for the mother and care arrangements as regards the child.
Author of the summary: Peter McEleavy
INCADAT comment
See the appellate court ruling at: MHS v. PIW [2010] NZHC 1462 [INCADAT Reference: HC/E/NZ 1226].
Establishing Consent
Different standards have been applied when it comes to establishing the Article 13(1) a) exception based on consent.
United Kingdom - England & Wales
In an early first instance decision it was held that ordinarily the clear and compelling evidence which was necessary would need to be in writing or at least evidenced by documentary material, see:
Re W. (Abduction: Procedure) [1995] 1 FLR 878, [INCADAT cite: HC/E/UKe 37].
This strict view has not been repeated in later first instance English cases, see:
Re C. (Abduction: Consent) [1996] 1 FLR 414 [INCADAT cite: HC/E/UKe 53];
Re K. (Abduction: Consent) [1997] 2 FLR 212 [INCADAT cite: HC/E/UKe 55].
In Re K. it was held that while consent must be real, positive and unequivocal, there could be circumstances in which a court could be satisfied that consent had been given, even though not in writing. Moreover, there could also be cases where consent could be inferred from conduct.
Germany
21 UF 70/01, Oberlandesgericht Köln, [INCADAT cite: HC/E/DE 491].
Convincing evidence is required to establish consent.
Ireland
R. v. R. [2006] IESC 7; [INCADAT cite: HC/E/IE 817].
The Re K. approach was specifically endorsed by the Irish Supreme Court.
The Netherlands
De Directie Preventie, optredend voor haarzelf en namens F. (vader/father) en H. (de moeder/mother) (14 juli 2000, ELRO-nummer: AA6532, Zaaknr.R99/167HR); [INCADAT cite: HC/E/NL 318].
Consent need not be for a permanent stay. The only issue is that there must be consent and that it has been proved convincingly.
South Africa
Central Authority v. H. 2008 (1) SA 49 (SCA) [INCADAT cite: HC/E/ZA 900].
Consent could be express or tacit.
Switzerland
5P.367/2005 /ast, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile), [INCADAT cite: HC/E/CH 841];
5P.380/2006 /blb; Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile),[INCADAT cite: HC/E/CH 895];
5P.1999/2006 /blb, Bundesgericht, II. Zivilabteilung ) (Tribunal Fédéral, 2ème Chambre Civile), [INCADAT cite: HC/E/CH 896];
The Swiss Supreme Court has held that with regard to consent and acquiescence, the left behind parent must clearly agree, explicitly or tacitly, to a durable change in the residence of the child. To this end the burden is on the abducting parent to show factual evidence which would lead to such a belief being plausible.
United States of America
Baxter v. Baxter, 423 F.3d 363 (3rd Cir. 2005) [INCADAT cite: HC/E/USf 808].
There must be a subjective assessment of what the applicant parent was actually contemplating. Consideration must also be given to the nature and scope of the consent.
Acquiescence
There has been general acceptance that where the exception of acquiescence is concerned regard must be paid in the first instance to the subjective intentions of the left behind parent, see:
Australia
Commissioner, Western Australia Police v. Dormann, JP (1997) FLC 92-766 [INCADAT cite: HC/E/AU 213];
Barry Eldon Matthews (Commissioner, Western Australia Police Service) v. Ziba Sabaghian PT 1767 of 2001 [INCADAT cite: HC/E/AU 345];
Austria
5Ob17/08y, Oberster Gerichtshof, (Austrian Supreme Court) 1/4/2008 [INCADAT cite: HC/E/AT 981].
Considering the issue for the first time, Austria's supreme court held that acquiescence in a temporary state of affairs would not suffice for the purposes of Article 13(1) a), rather there had to be acquiescence in a durable change in habitual residence.
Belgium
N° de rôle: 02/7742/A, Tribunal de première instance de Bruxelles 6/3/2003, [INCADAT cite: HC/E/BE 545];
Canada
Ibrahim v. Girgis, 2008 ONCA 23, [INCADAT cite: HC/E/CA 851];
United Kingdom - England & Wales
Re H. and Others (Minors) (Abduction: Acquiescence) [1998] AC 72 [INCADAT cite: HC/E/UKe 46];
In this case the House of Lords affirmed that acquiescence was not to be found in passing remarks or letters written by a parent who has recently suffered the trauma of the removal of his children.
Ireland
K. v. K., 6 May 1998, transcript, Supreme Court of Ireland [INCADAT cite: HC/E/IE 285];
Israel
Dagan v. Dagan 53 P.D (3) 254 [INCADAT cite: HC/E/IL 807];
New Zealand
P. v. P., 13 March 2002, Family Court at Greymouth (New Zealand), [INCADAT cite: HC/E/NZ 533];
United Kingdom - Scotland
M.M. v. A.M.R. or M. 2003 SCLR 71, [INCADAT cite: HC/E/UKs 500];
South Africa
Smith v. Smith 2001 (3) SA 845 [INCADAT cite: HC/E/ZA 499];
Switzerland
5P.367/2005 /ast, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile), [INCADAT cite: HC/E/CH 841].
In keeping with this approach there has also been a reluctance to find acquiescence where the applicant parent has sought initially to secure the voluntary return of the child or a reconciliation with the abducting parent, see:
United Kingdom - England & Wales
Re H. and Others (Minors) (Abduction: Acquiescence) [1998] AC 72 [INCADAT cite: HC/E/UKe 46];
P. v. P. (Abduction: Acquiescence) [1998] 2 FLR 835, [INCADAT cite: HC/E/UKe 179];
Ireland
R.K. v. J.K. (Child Abduction: Acquiescence) [2000] 2 IR 416, [INCADAT cite: HC/E/IE 285];
United States of America
Wanninger v. Wanninger, 850 F. Supp. 78 (D. Mass. 1994), [INCADAT cite: HC/E/USf 84];
In the Australian case Townsend & Director-General, Department of Families, Youth and Community (1999) 24 Fam LR 495, [INCADAT cite: HC/E/AU 290] negotiation over the course of 12 months was taken to amount to acquiescence but, notably, in the court's exercise of its discretion it decided to make a return order.
Australian and New Zealand Case Law
Australia
In Australia a very strict approach was adopted initially with regard to Article 13(1) b), see:
Director-General Department of Families, Youth and Community Care and Hobbs, 24 September 1999, Family Court of Australia (Brisbane) [INCADAT cite: HC/E/AU @294@];
Director General of the Department of Family and Community Services v. Davis (1990) FLC 92-182 [INCADAT cite: HC/E/AU @293@].
However, following the judgment of the High Court in the joint appeals:
D.P. v. Commonwealth Central Authority; J.L.M. v. Director-General, New South Wales Department of Community Services (2001) 206 CLR 401; (2001) FLC 93-081), [INCADAT cite HC/E/AU @346@, @347@], where a literal interpretation of the exception was advocated, greater attention has now been focused on the risk to the child and the post return situation.
In the context of a primary carer abducting parent refusing to return to the child's State of habitual residence, see:
Director General, Department of Families v. R.S.P. [2003] FamCA 623, [INCADAT cite HC/E/AU @544@].
With regard to a child facing a grave risk of psychological harm see:
J.M.B. and Ors & Secretary, Attorney-General's Department [2006] FamCA 59, [INCADAT cite HC/E/AU 871].
For recent examples of cases where the grave risk of harm exception was rejected see:
H.Z. v. State Central Authority [2006] FamCA 466, [INCADAT cite HC/E/AU 876];
State Central Authority v. Keenan [2004] FamCA 724, [INCADAT cite HC/E/AU @782@].
New Zealand
Appellate authority initially indicated that the change in emphasis adopted in Australia with regard to Article 13(1) b) would be followed in New Zealand also, see:
El Sayed v. Secretary for Justice, [2003] 1 NZLR 349, [INCADAT cite: HC/E/NZ 495].
However, in the more recent decision: K.S. v. L.S. [2003] 3 NZLR 837 [INCADAT cite: HC/E/NZ 770] the High Court of New Zealand (Auckland) has affirmed, albeit obiter, that the binding interpretation in New Zealand remained the strict interpretation given by the Court of Appeal in:
Anderson v. Central Authority for New Zealand [1996] 2 NZLR 517 (CA), [INCADAT cite: HC/E/NZ 90].